The NFL Lockout: The Current NFLPA Antitrust Strategy Lacks Staying Power

At the onset of the current NFL lockout, I am rooting for the players. The details of the lockout make the NFL players look like oppressed blue-collar workers, and makes the NFL owners look like Uncle Scrooge. But I am worried.

In anticipation of the lockout, the National Football League Players Association (NFLPA), the official NFL players union, decertified. Now, subsequent to the lockout, the NFLPA, acting as the NFL players’ official “trade association,” is preparing an antitrust lawsuit against the NFL. Once the NFL owners and players issues are resolved, it is expected the NFLPA will recertify as a players union. Here’s why:

Since the inception of the NFL, antitrust lawsuits against the NFL is how the players get things done. In the 1950s, when NFL players were unhappy with their pay, an antitrust lawsuit got them a pay raise. In the 1960s, when NFL players repeated requests for better health coverage fell on deaf ears, an antitrust lawsuit against the owners resulted in better health coverage. Finally, in the 1970-80s, when NFL players were unhappy with free agency rules, antitrust lawsuits got them the changes they wanted.

In 1987, feeling the NFL was adhering to prior, illegal free agency rules, the NFLPA again filed an antitrust lawsuit against the NFL. This time however, the court did not reach the issue of antitrust. The court found that NFL owners were exempt from antitrust laws under a labor exemption. Since the NFL players were operating under a collective bargaining agreement (CBA), how could NFL owners violate antitrust laws when they were giving the players what they had bargained for? The ruling, found in Powell v. Nat’l Football League, 930 F.2d 1293 (8th Cir. 1989), thus stood for the proposition that the players could either have a union, or have the right to file an antitrust lawsuit, but not both. In other words, as long as a union represents the players, the players cannot bring an antitrust lawsuit against the NFL.

Subsequent to the ruling in Powell, the NFLPA decertified as a players union, and then refiled the antitrust lawsuit. As a defense, the owners alleged that the NFLPA decertification was a “sham” — that the NFLPA was not a union in name only, solely to allow the players to bring an antitrust lawsuit. Thus, according to the owners, since the decertification was a “sham,” the players should not be able to bring an antitrust suit. In McNeil v. Nat’l Football League, 790 F.Supp. 871 (D.Minn. 1992), the court was unpersuaded, and ruled for the players on the case’s underlying issues — there was not enough evidence to show that the NFLPA was not a union in “name only.” Shortly after, the NFLPA recertified as a players union.

The NFLPA is currently employing the same strategy it did in McNeil – decertify, sue, recertify. This is what has me worried. From a players perspective, it is essential they maintain the ability to bring an antitrust lawsuit against the NFL. Historically, it has been the only real leverage the players have against the owners. Now, in the impending antitrust lawsuit, the owners are sure to raise the defense of a “sham” decertification. This time, the court will weigh the fact that the NFLPA went through the exact same process before. This may start to tip the scales that the NFLPA is not a union in “name only.” Should the court find that the NFLPA is not a union in “name only,” the players will need to make drastic fundamental changes before they can bring an antitrust lawsuit against the owners. This could be costly. If the court accepts the NFLPA decertification as valid this time, continued use of this decertify-sue-recertify strategy will certainly draw suspicion in the future.

An expensive antitrust lawsuit, which carries the potential for treble damages for liability, is the only real leverage the players have against the owners during labor negotiations. The players need to be careful to preserve this right. Continued use of the current decertify-sue-recertify strategy should raise the eyebrows of NFLPA lawyers, who can hopefully figure out a more stable, long-term strategy.